Anne V. Poulos v. Department of Children and Families (SPR 20180069)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Rebecca S. Murray Supervisor of Records

January 26, 2018 SPR18/069

Adelaida Jasperse

Records Access Officer/Assistant General Counsel Department of Children and Families

600 Washington Street

Boston, MA 02210

Dear Attorney Jasperse:

I have received the petition of Anne V. Poulos, Esq. appealing the response of the Department of Children and Families (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on December 8, 2017, Attorney Poulos requested “copies of any and all documents or reports relating to the [Department’s] investigation into” an incident on April 20, 2017. Attorney Poulos indicated that the documents should include, but not limited to, “Investigative Reports, Photographs, Video, Incident reports, and Correspondence.” On December 29, 2017, the Department provided a response in which it denied access to responsive records citing a variety of state and federal statutes as they operate through Exemption (a) of the Public Records Law. G. L. c. 4, § 7(26) (a). Unsatisfied with the

Department’s response, Attorney Poulos petitioned this office and this appeal, SPR18/069, was opened as a result,

The Public Records Law

The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.MLR. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26).

It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record.

One Ashburton Place, Room 1719, Boston, Massachusetts 02108 * (617) 727-2832 Fax: (617) 727-5914 sec.state.ma.us/pre * pre@sec.state.ma.us

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If there are any fees associated with a response a written, good faith estimate must be

provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records.

The Department’s December 29" response

In its December 29" response, the Department explained to Attorney Poulos that it withheld responsive records pursuant to the following state and federal statutes and regulations: G. L. c. 119, §§ 51E, 51F; G. L. c. 66A; G. L. c. 112, §§ 135-135B; 110 C.M.R. 12.00; 42 U.S.C. § 671(a)(8); 42 U.S.C, § 5106a(b)(2)(A); and 42 C.F.R. § 205.50, as they operate through Exemption (a) of the Public Records Law. See G. L. c. 4, § 7(26)(a). The Department indicated that G. L. c. 119, § 51E requires the Department to maintain a file of reports prepared under G.

L. c. 119, § 551A through 51E in a confidential manner. The Department indicated that “this confidential information can only be provided to parents or their legal counsels, guardians, reporting agencies, review boards, child welfare agencies or social workers,” .

The Department indicated that “[w]hile the Office of the Child Advocate (‘OCA’) is permitted to obtain a copy of these reports, no other party may obtain copies unless permitted as indicated in the statute.” The Department also indicated that “G. L. c. 119, § 51F requires that any information contained in a central registry of information created by DCF ‘shall be confidential’ and may only be disclosed to statutorily enumerated parties, including the OCA.” The Department indicated that failure to comply with the requirement of confidentiality will result in a penalty including a fine of up to a $1000 and possible imprisonment for up to two and half years. The Department also indicated that legal representatives seeking to obtain personal

records of their clients have a right of access by directing their requests to the Department’s area office.

Exemption (a)

In its December 29" response, the Department indicated that it withheld responsive records pursuant to G. L. c. 119, §§ 51E, SIF; G. L. c. 66A; G. L. c. 112, §§ 135-135B; 110 C.M.R. 12.00; 42 U.S.C. § 671(a)(8); 42 U.S.C. § 5106a(b)(2)(A); and 42 C.F.R. § 205.50, as they operate through Exemption (a) of the Public Records Law.

Exeniption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute

G. L. c. 4, §7 (26)(a).

A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway

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Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This office cannot order disclosure of records if a statute mandates nondisclosure. Gen. Chem. Corp, v. Dep’t of Envtl Quality Eng’g, 19 Mass. App. Ct. 287 (Mass. App. Ct. 1985).

This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.”

The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are tobe provided; the statute must expressly limit access to the listed individuals or entities.

The statutes provide in relevant part: Abuse and Neglect — Maintain Written Reports; Confidentiality; Inspection

The department shall maintain a file of the written reports prepared under this section and sections 51A to 51D, inclusive. These written reports shall be confidential. Upon request and with the approval of the commissioner, copies of written reports of initial investigations may be provided to: (i) the child’s parent, guardian, or counsel, (ii) the reporting person or agency, (iii) the appropriate review board, (iv) a child welfare agency of another state for the purpose of assisting that agency in determining whether to approve a prospective foster or adoptive parent, or (v) a social worker assigned to the case. No such report shall be made available to any persons other than those specified in this section without the written and informed consent of the child’s parent or guardian, the written approval of the commissioner, or an order of a court of competent jurisdiction. Pursuant to chapter 18C, the child advocate shall have access to these reports.

G. L.c. 119, § SIE.

Abuse and Neglect ~ Central Registry of Information — Confidentiality

The department shall maintain a central registry of information sufficient to identify children whose names are reported under sections 51A to 51B. Data and information relating to individual cases in the central registry shall be confidential and shall be made available only with the approval of the commissioner or upon court order; provided, however, that the department, upon request, may release this data and information to a child welfare agency of another state for the

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purpose of assisting that agency in determining whether to approve a prospective foster or adoptive parent .

Any person employed in the central registry who permits the data and information stored in the registry to be released without authorization to persons other than those specified in the rules and regulations shall be punished by a fine of not more than $1,000 or by imprisonment for not more than 2% years, or both.

G. L.c. 119, § SIF. Confidentiality of communications with Social Worker; Exceptions

All communications between a social worker licensed pursuant to the provisions of section one hundred and thirty-two or a social worker employed in a state, county or municipal governmental agency, and a client are confidential...

No such social worker, colleague, agent or employee of any social worker, whether professional, clerical, academic or therapeutic, shall disclose any information acquired or revealed in the course of or in connection with the performance of the social worker’s professional services, including the fact, circumstances, findings or records of such services . . .

G. L. c. 112, §135A.

Conclusion

Accordingly, whereas the responsive records consist of information related to the type specifically exempted by the above statutes, I decline to opine upon the remaining statutes and regulations, or conduct an in camera inspection or a hearing on this matter. Whereas the Department met its burden in properly withholding the requested records, I will now consider this administrative appeal closed.

Sincerely,

Flere. Muar.

Rebecca S. Murray Supervisor of Records

cc: Anne V. Poulos, Esq.